Legal News

New York City Strengthens and Makes Significant Amendments to the Earned Sick Time Act

The New York City Council voted 46-5 this February to expand the scope of the New York City Earned Sick Time Act (“ESTA”) to require business with five or more employees to provide up to five paid sick days per year. When the law was passed last year, it originally imposed paid sick leave requirements only on businesses with fifteen or more employees.

The new amendments, signed into law by Mayor DiBlasio and effective April 1, 2014, extended application of the law to all businesses with five or more employees. Further, even businesses that are not required to provide paid sick leave are now required to offer their employees unpaid sick leave according to the same schedule.

In addition to expanding the category of covered employers, the ESTA increases the statute of limitations for filing a complaint from nine months to two years. The law also institutes a six-month grace period for businesses with 5-19 employees and those in manufacturing before they will be fined for non-compliance. Finally, the new amendments make significant changes in filing requirements, notice obligations, and enforcement powers.  

What Employers are Required to Provide Paid Sick Leave?

The ESTA requires all employers with five or more employees to provide paid sick leave. Employers with four or less employees must provide unpaid sick leave. The Act does not pertain employees who are covered by a collective bargaining agreement that waives the provisions of the ESTA and provides comparable benefits, work study programs, employees for the hours worked and compensated by or through qualified scholarships as defined in 26 U.S.C.117, independent contractors, and hourly professional employees.[1]

How Much Sick Leave are Employers Required to Provide?

All employers, except with regards to domestic workers, [2] must provide a minimum of one hour of sick time for every thirty hours an employee works. The amount of sick time employers are required to provide is capped at forty hours in a calendar year. If the employer has five or more employees, the sick time is to be paid; if there are four or fewer employees, the sick time may be unpaid. The ESTA does not limit the amount of paid or unpaid sick leave employers are allowed to give; rather, it encourages employers to be more generous than the act requires.

I Already Give My Employees Paid/Unpaid Sick Leave; Do I Have to Give Them More?

Generally, if an employer provides paid leave already in the form of sick days, personal days, vacation, or other paid time off, the act does not require additional leave if the amount currently provided is equal to or greater than what the ESTA mandates. Likewise, if an employer that is required to provide unpaid sick leave by the ESTA is already providing unpaid leave to his or her employees that meets the act’s requirements, he or she is not required to give additional unpaid leave.

Under What Circumstances May Employees Use their Sick Time?

Employees may use their sick time to be absent from work due to: 1) The employee’s own physical or mental illness; 2) the employee’s need to care for a family member’s physical or mental illness; [3] or 3) the closure of the employee’s place of business by order of a public official due to a public health emergency or the employee’s need to care for a child whose school or childcare provider has been closed by a public official due to a public health emergency.

Caring for an employee’s own illness, condition, or injury or that of a family member includes treatment, preventative treatment, care, obtaining a diagnosis, or simply being too ill to work. Employers may not require the disclosure of an employee’s or his or her family member’s medical condition as a condition of providing sick time.

Employers may require reasonable notice of the need to use sick time. When the need to use sick time is foreseeable, an employer may require up to seven days’ notice; when the need is not foreseeable, the employer may require notice as soon as is practicable. If an employee is absent for more than three days, an employer may require reasonable documentation that the use of sick time was authorized under the ESTA. For example, an employer may require a doctor’s note if an employee is out due to his or her own illness for more than three days. If an employee has inappropriately used sick days, the employer may take disciplinary action, including termination.

Are Employers Required to Provide Notice to Employees About the New Law?

In short, yes. Employers must provide notice to all current employees via conspicuously placed posters. The notice must be in English and the primary language of the employee if the Department of Consumer Affairs has made the translation available.  Posters are available for download and printing on the DCA website in English and various translations: http://www.nyc.gov/html/dca/html/law/PaidSickLeave.shtml.  The specific posting requirements are also listed on the DCA’s website: http://www.nyc.gov/html/dca/html/law/PaidSickLeave_FAQs.shtml#NoticetoEmployees/.

What Happens if an Employer Fails to Provide Notice?

Employers who willfully violate the notice requirements of the ESTA will be subjected to a fine not exceeding fifty dollars for each employee to whom proper notice was not given.

Are Employers Required to Keep any Records by the ESTA?

Yes. Employers must retain documents that show the employer has complied with the ESTA’s requirements for three years and must make the records available upon request by the Department of Consumer Affairs.

Who has the Power to Enforce the ESTA?

The Commissioner of the Department of Consumer affairs has the authority to receive, inspect, and resolve complaints filed under the ESTA and may also conduct investigations on his or her own initiative. Additionally, the mayor may designate any other agency or department to enforce the ESTA, which will then have all the powers of the Commissioner.  

What Should an Employee Do if He or She Believes an Employer is Violating the ESTA?

Employees may file complaints with the Department of Consumer Affairs within two years from when he or she knew or should have known of the alleged violation. The Department will conduct an investigation and attempt to resolve the complaint through mediation. The identity of the complainant will be kept confidential unless it is necessary to resolve the issue or is required by law. To the extent that it is possible, the Department of Consumer Affairs will notify the complainant that it intends to disclose his or her identity prior to doing so.

What can the Department do when an Employer Violates the ESTA?

If the Department of Consumer Affairs finds that an employer has violated the ESTA, the department may impose penalties and provide other relief to the aggrieved employee, such as:

1. For each instance of sick time taken by an employee but unlawfully not compensated by the employer: three times the wages that should have been paid or two-hundred and fifty dollars, whichever is greater;
2. For each instance of sick time requested by an employee but unlawfully denied by the employer and not taken by the employee or unlawfully conditioned upon searching for or finding a replacement worker, or for each instance an employer requires an employee to work additional hours without the mutual consent of such employer and employee to make up for the original hours during which such employee is absent pursuant to this chapter: five hundred dollars;
3. For each instance of unlawful retaliation, not including discharge from employment: full compensation, including wages and benefits lost, five hundred dollars and equitable relief as appropriate; and
4. For each instance of unlawful discharge from employment: full compensation, including wages and benefits lost, two thousand five hundred dollars, and equitable relief, including reinstatement, as appropriate.

Additionally, any entity or person found to be in violation of the provisions the ESTA will be forced to pay a civil penalty to the City of up to five hundred dollars for the first violation. For subsequent violations that occur within two years of any previous violation, the fine can be as high as seven hundred and fifty dollars for the second violation and one thousand dollars for each succeeding violation.

However, for businesses with fewer than 20 employees or businesses that are in the manufacturing sector, the department will not impose civil penalties for any violations that occur before October 1, 2014, though it may impose equitable relief. For businesses with more than 20 employees, the department will impose penalties, however the first violation will not serve as a predicate for imposing fines for subsequent violations if the first violation occurs prior to October 1, 2014. A second violation that occurs before October 1, 2014 will serve as a predicate for imposing fines for subsequent violations.

What Should Businesses Do to Comply with the ESTA?

All employers should:

• Review any sick time policies that are in place;
• Create procedures to document compliance with the ESTA;
• Create procedures for implementing sick time policies, if necessary;
• Contact the Department of Consumer Affairs with regards to official notice signs to post;
• Train administrators, managers and supervisors on compliance with the ESTA and ensure that all employees are receiving their mandated sick time.
• Create procedures for informing all employees, present and future, of their rights under the ESTA, including reviewing and updating Employee Manuals and other materials provided to new-hires.

Conclusion

Overall, the purpose of the ESTA is to create a right to sick leave for all employees and to encourage employers to provide sick leave that is more generous than the act requires. While the goals and purposes of the act are relatively straightforward, the details as they apply to a specific business can be tricky, and an employer should consult with his or her attorney to make sure he or she is in compliance with the ESTA.

For more information, employees and employers can contact us here.

[1] The act defines hourly professional employees as one “(i) who is professionally licensed by the New York State Education Department, Office of Professions, under the direction of the New York state board of regents under Education Law sections 6732, 7902 or 8202, (ii) who calls in for work assignments at will determining his or her own work schedule with the ability to reject or accept any assignment referred to them and (iii) who is paid an average hourly wage which is at least four times the federal minimum wage for hours worked during the calendar year.

[2] For more information regarding how ESTA applies to domestic workers, see the Department of Consumer Affairs’ website: http://www.nyc.gov/html/dca/html/law/PaidSickLeave_DomesticWorkers.shtml.

[3] Family member is defined as the employee’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, or the child or parent of the employee’s spouse or domestic partner.